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Appellate Court Date: 2017.05.09
13:04:06 -05'00'
Theis v. Illinois Workers’ Compensation Comm’n, 2017 IL App (1st) 161237WC
Appellate Court BRITTANY M. THEIS, Appellant, v. THE ILLINOIS WORKERS’
Caption COMPENSATION COMMISSION et al. (Steak ’n Shake Operations,
Inc., Appellees).
District & No. First District, Workers’ Compensation Commission Division
Docket No. 1-16-1237
Rule 23 order filed February 17, 2017
Rule 23 order
withdrawn March 14, 2017
Opinion filed March 17, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 15-L-50631; the
Review Hon. Alexander P. White, Judge, presiding.
Judgment Affirmed.
Counsel on Edward Czapla, of Paul W. Grauer & Associates, of Schaumburg, for
Appeal appellant.
Timothy J. O’Gorman, of Keefe, Campbell, Biery & Associates, LLC,
of Chicago, for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and
Moore concurred in the judgment and opinion.
OPINION
¶1 In May 2014, claimant, Brittany Theis, was awarded benefits under the Workers’
Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2012)), for an injury to her right arm
resulting from a March 3, 2013, fall at work. Neither she nor the employer, Steak ‘n Shake
Operations, Inc., filed a petition for review.
¶2 In October 2014, claimant filed a petition for penalties and fees pursuant to sections 19(l),
19(k), and 16 of the Act. 820 ILCS 305/19(l), (k), 16 (West 2012). Following a December
2014 hearing, the Illinois Workers’ Compensation Commission (Commission) awarded
claimant section 19(l) penalties in the amount of $4920, but it denied claimant’s request for
section 19(k) penalties and section 16 fees. On judicial review, the circuit court reversed the
Commission’s award of section 19(l) penalties, but it otherwise confirmed the Commission’s
decision. Claimant appeals, asserting the Commission’s award of section 19(l) penalties was
appropriate. We affirm.
¶3 I. BACKGROUND
¶4 In April 2013, claimant filed an application for adjustment of claim pursuant to the Act for
an injury to her right arm resulting from a March 3, 2013, fall at work. An arbitration hearing
was conducted on April 7, 2014. On May 23, 2014, the arbitrator issued his decision, finding
that claimant suffered a work accident and awarding her benefits under the Act. Specifically,
he awarded claimant temporary total disability (TTD) benefits in the amount of $460 (which
had already been paid by the employer), permanent partial disability (PPD) benefits in the
amount of $19,481 (88.55 weeks at a rate of $220 or 35% permanent loss of use of her right
arm), and “all medical expenses contained in [claimant’s] Exhibits 1-9.” Neither party filed a
petition for review of the arbitrator’s decision.
¶5 On October 3, 2014, claimant filed a petition for penalties and fees pursuant to sections
19(l), 19(k), and 16 of the Act. She asserted that more than 130 days had passed since the
arbitration decision was entered and that the employer had yet to pay either award.
¶6 On October 8, 2014, the employer issued claimant a check in the amount of $19,481 for
payment of the PPD award.
¶7 The record shows an October 16, 2014, email from the employer’s counsel to claimant’s
counsel which states, “I’ve never received any of your exhibits from trial and I must note I’ve
asked several times since we tried the case. You allowed me to look through your trial exhibits
the day of trial however I was never provided a copy.” Counsel for the employer further noted
its records showed that it had already “paid a significant amount of [claimant’s] medical bills”
but stated, “[w]ithout your exhibits, we’re unable to calculate the correct amount which was
awarded at trial. Please send your exhibits to our office as soon as you can so we can calculate
what is owed and what was paid and we can cut a check.” On December 4, 2014, the employer
issued a check to claimant in the amount of $55,997.04 for her medical expenses.
¶8 On December 9, 2014, a hearing on claimant’s petition was conducted before the
Commission. Regarding the award for medical expenses, claimant asserted that her medical
bills “were submitted at trial in evidence and they were awarded pursuant to the arbitrator’s
award at that time on May 23, 2014.” Claimant further argued that despite the employer’s
“notice of those outstanding bills prior to proceeding to the hearing,” it “waited over 196 days
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to pay the award of medical expenses.” In contrast, the employer argued it did not receive
copies of claimant’s medical bills until October 27, 2014, after having requested them from
claimant’s attorney. According to the employer, it was not relevant if copies of the medical
bills were admitted at trial because the Act requires the medical bills to be tendered to the
employer for payment. The employer further stated that upon receiving the medical bills from
claimant, “a fee schedule calculation [was] made and the bills compared to other bills and other
records we had previously received to make sure that there was no balanced [sic] billing or
double billing.” Once those tasks were completed, the employer issued claimant a check on
December 5, 2014.
¶9 Regarding the payment of the PPD award, the employer admitted the payment was late.
However, it maintained that no request for payment had been made by claimant prior to the
filing of her petition for penalties and fees, a copy of which the employer received on October
6, 2014. According to the employer, “that was the first time they were made aware that there
had been the nonpayment of the award.” The record shows the employer issued claimant a
check in the amount of the PPD award on October 8, 2014.
¶ 10 On August 3, 2015, the Commission entered its decision. First, it denied claimant’s request
for section 19(k) penalties and section 16 fees, finding she failed to prove the employer acted in
an unreasonable or vexatious manner. Specifically, the Commission noted claimant had not (1)
tendered the medical bills at issue to the employer until October 17, 2014, or (2) requested
payment of her PPD award prior to filing her petition for penalties and fees. Essentially, it
found that claimant’s actions—or failure to act—caused the delay in the payment of the
awards. Nonetheless, the Commission awarded claimant section 19(l) penalties in the amount
of $4920 ($30 per day from June 23, 2014, through December 3, 2014) due to the employer’s
failure to “timely pay[ ] the award or amounts otherwise due for medical bills and permanency
upon the award becoming final and non-appealable.”
¶ 11 The employer appealed the Commission’s award of section 19(l) penalties. On April 12,
2016, the circuit court of Cook County reversed the Commission’s award of section 19(l)
penalties, finding that the employer’s delay in paying the awards was justified. It otherwise
confirmed the Commission’s denial of section 19(k) penalties and section 16 fees.
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 On appeal, claimant challenges the circuit court’s reversal of the Commission’s award of
section 19(l) penalties. Specifically, claimant asserts the record shows the employer
unreasonably delayed payment of permanency benefits and medical expenses.
¶ 15 A. Standard of Review
¶ 16 We review the decision of the Commission rather than the circuit court’s judgment as the
Commission is the ultimate decision maker in workers’ compensation cases. Dodaro v. Illinois
Workers’ Compensation Comm’n, 403 Ill. App. 3d 538, 543, 950 N.E.2d 256, 260
(2010); Roberson v. Industrial Comm’n, 225 Ill. 2d 159, 173, 866 N.E.2d 191, 199 (2007). We
will not disturb the Commission’s decision unless its analysis is contrary to law or its fact
determinations are against the manifest weight of the evidence. Roberson, 225 Ill. 2d at 173,
866 N.E.2d at 199. “Fact determinations are against the manifest weight of the evidence only
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when no rational trier of fact could have agreed with the agency.” Id. at 173-74, 866 N.E.2d at
199.
¶ 17 B. Section 19(l) Penalties
¶ 18 Section 19(l) of the Act provides as follows:
“If the employee has made a written demand for payment of benefits under Section 8(a)
or Section 8(b), the employer shall have 14 days after receipt of the demand to set forth
in writing the reason for the delay. In the case of demand for payment of medical
benefits under Section 8(a), the time for the employer to respond shall not commence
until the expiration of the allotted 30 days specified under Section 8.2(d). In case the
employer or his or her insurance carrier shall without good and just cause fail, neglect,
refuse, or unreasonably delay the payment of benefits under Section 8(a) or Section
8(b), the Arbitrator or the Commission shall allow to the employee additional
compensation in the sum of $30 per day for each day that the benefits under Section
8(a) or Section 8(b) have been so withheld or refused, not to exceed $10,000. A delay
in payment of 14 days or more shall create a rebuttable presumption of unreasonable
delay.” 820 ILCS 305/19(l) (West 2012).
¶ 19 “Penalties under section 19(l) are in the nature of a late fee” and are “mandatory ‘[i]f the
payment is late, for whatever reason, and the employer or its carrier cannot show an adequate
justification for the delay.’ ” Jacobo v. Illinois Workers’ Compensation Comm’n, 2011 IL App
(3d) 100807WC, ¶ 19, 959 N.E.2d 772 (quoting McMahan v. Industrial Comm’n, 183 Ill. 2d
499, 515, 702 N.E.2d 545, 552 (1998)). “The standard for determining whether an employer
has good and just cause for a delay in payment is defined in terms of reasonableness.” Id.
When benefits are withheld for 14 days or more, a rebuttable presumption of unreasonable
delay exists. 820 ILCS 305/19(l) (West 2012). “The employer has the burden of justifying the
delay, and the employer’s justification for the delay is sufficient only if a reasonable person in
the employer’s position would have believed that the delay was justified.” Jacobo, 2011 IL
App (3d) 100807WC, ¶ 19, 959 N.E.2d 772. “The Commission’s evaluation of the
reasonableness of the employer’s delay is a question of fact that will not be disturbed unless it
is contrary to the manifest weight of the evidence.” Id.
¶ 20 Initially, we note, as did the circuit court, that section 19(l) penalties are not applicable to
PPD awards. Rather, section 19(l) penalties apply to the delayed payment of medical expenses
(section 8(a)) and TTD benefits (section 8(b)). See 820 ILCS 305/19(l) (West 2012). The
record shows that the total TTD award was paid by the employer prior to the arbitrator’s
decision in this case (the employer was credited $502.86 for TTD) and is not at issue. Thus,
section 19(l) penalties are appropriate only if the employer failed to show an adequate
justification for its delay in paying claimant’s medical expenses.
¶ 21 Here, the employer asserts, as it did below, that its delay in paying claimant’s medical bills
was due to the fact that claimant did not tender the medical bills until October 27, 2014.
According to the employer, once it had access to the bills, it calculated the amounts due
pursuant to the fee schedule and issued a check to claimant for payment of all medical
expenses on December 5, 2014.
¶ 22 In contrast, claimant argues that her “written demand for payment of the medical expenses
[as required by section 19(l) of the Act] was contained in the Request for Hearing form
submitted by the parties at the beginning of the [a]rbitration hearing” and that the medical
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expenses claimed at arbitration were admitted into evidence. According to claimant, she “had
no duty to tender the medical bills admitted into evidence to [the employer] following the
[a]rbitration hearing.” Rather, she contends the employer could have accessed her medical
records by subpoenaing them directly from the medical providers, ordering them from the
Record Copy Service identified on the subpoena for medical bills, or ordering a copy of the
transcript of the proceedings and accompanying exhibits.
¶ 23 We note that claimant cites no authority, nor does our research reveal any, to support the
proposition that a written demand for payment of medical expenses contained within a request
for hearing form submitted in advance of an arbitration hearing constitutes a sufficient written
request for payment following an award of medical expenses under section 19(l) of the Act.
However, even if we were to find that claimant submitted a sufficient written request for the
payment of her award of medical expenses under section 19(l) of the Act, we would still find
the Commission’s award of penalties was against the manifest weight of the evidence. The act
of submitting medical bills into evidence during arbitration is not the same as tendering them to
the employer for payment. In addition, claimant cites no authority, nor does our research reveal
any, which stands for the proposition that an employer has a duty to actively seek out a
claimant’s medical bills either through the use of a subpoena or some other method in order to
comply with the requirements of section 19(l). Although the Commission found that it was
claimant’s failure to tender the medical bills to the employer that caused the delay in the
payment of the award, it nonetheless awarded claimant section 19(l) penalties due to the
employer’s failure to timely pay the award, which was error. Here, the employer provided
adequate justification for its delay in paying claimant’s award of medical expenses.
Accordingly, the Commission’s award of section 19(l) penalties was against the manifest
weight of the evidence.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we affirm the circuit court’s judgment reversing the portion of the
Commission’s decision which awarded section 19(l) penalties and confirming the denial of
section 19(k) penalties and section 16 fees.
¶ 26 Affirmed.
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